NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 9, 2013
Decided March 4, 2014
Before
DIANE P. WOOD, Chief Judge
MICHAEL S. KANNE, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 13-1119 Appeal from the United States District
Court for the Eastern District of
PATRICK E. HAMPTON, Wisconsin.
Petitioner-Appellant,
No. 12-C-186
v.
William E. Callahan, Jr., Magistrate
JAMES SCHWOCHERT, Judge.
Respondent-Appellee.
ORDER
Patrick Hampton is in a Wisconsin prison following his guilty plea and conviction
on first-degree reckless homicide charges for the killing of his roommate, Carlton
Stovall. His case reaches our court on appeal from the district court’s denial of
Hampton’s petition for a writ of habeas corpus under 28 U.S.C. § 2254. He believes that
the Wisconsin courts erred in their application of the rules established in Miranda v.
Arizona, 384 U.S. 436 (1966) – in particular the rule forbidding the police to re-initiate
No. 13-1119 Page 2
communication with someone who has invoked his right to counsel. The district court
found that the decision of the state court rejecting that assertion was not an
unreasonable application of any U.S. Supreme Court decision, and so it denied
Hampton’s petition. Bearing in mind the deferential standards that govern our
consideration of this field, we find no error in the district court’s decision, and so we
affirm.
I
Our account of the facts follows that of the Wisconsin Court of Appeals, which was
the last state court to consider Hampton’s case; its findings are presumed correct. See 28
U.S.C. § 2254(e)(1); Wisconsin v. Hampton, No. 2009AP3040-CR (Wis. Ct. App. Nov. 2,
2010). After Stovall was found dead, Hampton was arrested and questioned by
Detectives Timothy Heier and Jeremiah Jacks. Initially, Hampton refused to say
anything; he told Heier and Jacks that he wanted to talk only to Detective Mark
Peterson, with whom he had dealt in the past. He also complained that he did not have
a lawyer. Nevertheless, Heier and Jacks read Hampton his Miranda rights; Hampton
confirmed that he understood them; and Hampton proceeded to answer questions for
about two hours.
At that point, Hampton cut off the conversation and the following colloquy
occurred:
HAMPTON: I’m not trying to be rude or nothing. I just want to talk to a lawyer.
DETECTIVE HEIER: Any specific lawyer you want us to call?
HAMPTON: No. I don’t know.
Immediately after that exchange, the audio tape of Hampton’s interrogation reflects
sounds indicating that the detectives were packing up to leave. This prompted another
comment from Hampton and reply from the detective:
HAMPTON: Are you guys gonna leave?
DETECTIVE HEIER: Yeah. If you wanna talk to a lawyer, we’re not going to talk to
you. … You’re in charge. … If you want a lawyer, I respect that and I’ll honor that.
Before leaving, however, the detectives informed Hampton that a police officer was
going to come into the room to photograph the cuts on his hands. Hampton responded,
No. 13-1119 Page 3
“I just don’t want you guys to leave right now.” He continued, “I really do want to talk
to you guys … . I just need some time.” Hampton wanted the time to read the Bible and
pray. The detectives did not object to his request; they found a Bible for him and left
him alone for about an hour.
Heier then returned and once again read Hampton his Miranda rights. Hampton re-
confirmed that he understood them. Hampton then commented that he did not “want
to say the wrong thing,” but that he would “talk about some things.” He answered
questions for another hour, at which time he said that he wanted to end the interview
and he was returned to his cell.
It was not until the next day, when Detective Peterson and another officer
questioned him again, that Hampton revealed anything incriminating. That morning
Hampton received another round of Miranda warnings, and he agreed to waive his
rights. He did not ask again for counsel, nor did he invoke his right to remain silent.
Instead, he confessed to killing Stovall while he (Hampton) was high on drugs.
Hampton’s confession led to charges in state court for first-degree reckless homicide.
In those proceedings, Hampton moved to suppress his confession. He focused on the
continuation of questioning after he first asked for a lawyer (set out in the initial two
exchanges above). He argued that the third questioning session, in which he confessed,
was not sufficiently attenuated from the first, when the alleged Fifth Amendment
violation occurred. The Wisconsin trial court denied the motion after conducting an
evidentiary hearing at which Heier and Peterson testified and the state submitted the
audio tapes of the interviews. Hampton then pleaded guilty and was sentenced to 25
years’ imprisonment.
Hampton appealed from the adverse ruling on the suppression motion to the
Wisconsin Court of Appeals. That court found that although Hampton had
unambiguously invoked his right to counsel two hours into the interrogation, it was he
who initiated further discussion. Citing Oregon v. Bradshaw, 462 U.S. 1039 (1983), the
court determined that Hampton signaled his desire to discuss Stovall’s death when he
told the detectives “I just don’t want you guys to leave right now,” and when he said “I
really do want to talk to you guys.” The Supreme Court of Wisconsin declined to
review that holding.
Hampton then turned to the federal district court, where he filed his petition for a
writ of habeas corpus. In the petition, he asserted that the detectives had violated his
Fifth Amendment right to counsel when they resumed the interrogation after he had
asked for a lawyer. The district court denied the petition, but it granted a certificate of
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appealability on “whether the Wisconsin Court of Appeals’ finding that Hampton
initiated further communications with detectives after invoking his right to counsel was
an unreasonable application of Oregon v. Bradshaw … and Edwards v. Arizona, 451 U.S.
477 (1981).”
II
It is Hampton’s burden to show that the decision of the Wisconsin Court of Appeals
to the effect that it was Hampton who initiated the second session of questioning was
an unreasonable application of the law as declared by the Supreme Court of the United
States. See 28 U.S.C. § 2254(d)(1). It is uncontested that Hampton invoked his right to
counsel. But in Edwards and Bradshaw, the Supreme Court of the United States held that
it is possible for a defendant who initially invokes his Miranda rights to reconsider that
position and to initiate a discussion. The police may not be the ones who take the first
step. Edwards, 451 U.S. at 484-85. Hampton contends in this case that it was indeed the
detectives who re-started his interrogation (or perhaps who never really ended it), after
he asked for a lawyer. He points to the fact that Detective Heier told him that the cuts
on his hands were going to be photographed. Because those cuts were potential
evidence of his involvement in Stovall’s death, the photographs (Hampton argues) were
likely to elicit an incriminating remark from him. But Detective Heier’s statement
cannot be characterized as interrogation. All he was doing was telling Hampton what
was going to happen next, in response to Hampton’s question about whether the
detectives were leaving. A police officer’s response to a suspect’s question is not
automatically interrogation. United States v. Hendrix, 509 F.3d 362, 374 (7th Cir. 2007);
United States v. Briggs, 273 F.3d 737, 740-41 (7th Cir. 2001). And it was not interrogation
here.
Hampton insists alternatively that his statements did not initiate a discussion about
the homicide. All he was saying, he contends, is that he did not want the detectives to
leave. This comment related only to the logistics of his custody. Moreover, when he said
that he wanted to talk to the detectives, he qualified that statement by requesting a
break—something that disengaged him from the discussion.
As one can see from the exchanges above, the detectives stopped questioning
Hampton and prepared to leave the moment he asked for a lawyer. They resumed
speaking to him only to answer his question. That was when Hampton said “I really do
want to talk to you guys right now.” Both we and our sister circuits have applied
Edwards to situations like this one. See Jackson v. Frank, 348 F.3d 658, 660-62 & n.4 (7th
Cir. 2003) (suspect asked for counsel, detective said he could not continue interrogation
and gathered materials to leave, then suspect said he wanted to talk now); United States
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v. Velasquez, 885 F.2d 1076, 1085-86 (3d Cir. 1989); see also United States v. Clay, 320 F.
App’x 384, 388-89 (6th Cir. 2009).
Hampton also asserts that even if he re-initiated the discussion, his waiver of his
right to counsel after Detective Heier returned was not knowing and voluntary. The
fresh set of Miranda warnings that the detective provided was not enough, Hampton
believes, based on Arizona v. Roberson, 486 U.S. 675, 686 (1988). In Roberson, however, the
new warnings followed the resumption of interrogation by the police. 486 U.S. at 678.
Roberson expressly distinguished the case of a suspect’s restarting the discussion. In that
situation, the Court said, further questioning is “perfectly valid.” Id. at 687. This court
too has held that a suspect’s re-initiation of questioning, along with new Miranda
warnings, is enough to satisfy Edwards and Bradshaw. See United States v. Huerta, 239
F.3d 865, 873 (7th Cir. 2001).
Finally, Hampton contends that the Wisconsin court did not consider the totality of
the circumstances surrounding the new round of interrogation, but he does not identify
precisely what the court failed to consider. In fact, the Wisconsin court recognized that
it was required to consider all of the circumstances. It discussed the length and
substance of the questioning up to that point, it quoted Hampton’s and the detectives’
statements, and it remarked that the detectives honored Hampton’s request for a break
during which he could read the Bible and think in peace. Hampton’s real disagreement
with the Wisconsin court seems to be with how it weighed those factors. That is not a
basis for collateral relief. The question is not whether this court would have arrived at a
different conclusion. It is whether the last state court’s decision was reasonable. See
Coleman v. Hardy, 690 F.3d 811, 816-17 (7th Cir. 2012). It was.
We therefore AFFIRM the judgment of the district court.